158 Ky. 224 | Ky. Ct. App. | 1914
Opinion of the Court bt
Affirming.
Joseph Baker recovered against the Louisville & Nashville Railroad Company, in the Oldham Circuit Court, a verdict and judgment for fifteen hundred dollars, for personal injuries received by him as a result of being struck by a mail bag thrown from one of said company’s trains by the baggageman, a servant of said company, while said Baker was standing upon the plat
The company appeals, insisting that the damages are excessive; that counsel for plaintiff was guilty of such misconduct upon the trial as to prejudice its substantial rights; and that the court erred in giving and in refusing to give certain instructions.
Dr. Blaydes testified that in his opinion the use of the knee joint might be affected permanently to some extent; that there was a possibility of permanent stiffness of that joint. Dr. Connell testified that appellee’s injuries would possibly finally result in a chronic stillness of the knee joint.
For defendant company, Dr. Sherrill testified that upon his first examination of appellee on April 26th, he found inflammation and water on the knee, but that he did not believe the knee to be permanently injured; that the swelling then present he considered due in part to the tightness of the bandage used. Dr. Cassady testified that in his opinion appellee’s injuries were not permanent, and that appellee ought to be thoroughly restored in two or three months from the time of the trial. He also stated that part of the swollen condition of the knee, he attributed to the tightness of the bandage used.
Plaintiff offered this letter in evidence, and defendant objected to the admission of same, whereupon the court sustained the objection. The letter offered reads as follows:
Louisville, Ky., May 5, 1913.
Mr. Joseph Baker,
Lagrange, Ky.
Dear Sir:
Referring to the matter of personal injury sustained by you at Taylorsville, Ky., sometime ago while you were a passenger on one of our trains. Will you kindly advise me where a representative of this department can have an interview with you?
Yours very truly,
J. J. Donohue, Chief Law Agent.
The letter was written upon the letter-heads of the defendant company.
Appellant insists that its substantial rights were seriously prejudiced by the statement made by plaintiff’s counsel. In making the statement, the attorney was not authorized by the law nor sustained by the facts, as appellant contends, but there was no serious denial of the fact that plaintiff was struck by the mail bag,, nor-is
In lieu of the instruction offered, the court on its own motion, gave the following:
“The court instructs the jury that if they believe from the evidence that the plaintiff was injured at the time and place mentioned in the petition, it was his duty to use such reasonable means as he could in the exercise of ordinary care, to mitigate said injury and effect a cure, and if he negligently failed to do so, he cannot recover for any aggravation of his injury as a direct result of his failure to reasonably care for said injury, if any.”
The only practical difference between the instruction offered and the one given is that the one offered undertakes to say that ordinary care is the following of such advice as was given appellee by a physician whom he consulted.
The court is of the opinion that appellee was not absolutely required to take such steps as the physician advised, in order to exercise ordinary care; under the circumstances it was for the jury to determine whether he exercised ordinary care.
. However, in the present case, no unsafe condition of the premises is involved; nor was the passenger in transit upon, or engaged in alighting from or boarding a train. He was injured while approaching a train which was being drawn into the statipn, and which train he proposed to board; and his injuries were caused by a mail bag thrown from that train.
We have been directed to no authorities in point, but upon reason and principle, passengers who, while the train is being drawn into the station for the purpose of affording them an opportunity to board it, are in a place where persons usually get on or off the train, should be entitled to the same degree of care, as those actually engaged in boarding it or in alighting therefrom, or in transit thereon, in so far as the actual operation of the train itself is concerned, as distinguished from failure to maintain the premises in a reasonably safe condition.
However, in the case at bar, negligence was clearly proven. In fact, the circumstances are such as practically to create a presumption of negligence. Appellant ¡company made but little or no effort to show any state of facts exonerating it from the charge of negligence, and there was no proof of contributory neglect upon the part of appellee. The court, under the evidence, would have been justified in directing the jury to find a verdict for plaintiff. And, should it be conceded that appellant company owed to appellee, at the time he was injured, the duty of exercising only ordinary care, the instruction complained of was not prejudicial.
Judgment affirmed.